Every attorney worth her salt knows that good facts in your favor will make good law (in your favor). In Gere v. Louis, No. A-78, September term 2010, the facts favored Ms. Gere.
The N.J. Supreme Court held:
Our review of this record convinces us that it contains no basis to warrant applying the “equity-based exception” of Puder to the facts of this matter. In Puder, we barred the client’s malpractice claim because her testimony demonstrated that the second settlement had the effect of placing her in the situation she contended she should have occupied at the outset. That second settlement cured the deficiencies she perceived in the first settlement.
That, however, is not the situation presented to us in this matter. First, plaintiff, unlike Mrs. Buechel, made no claim of malpractice with respect to the negotiation of the original property settlement agreement. Her claim of malpractice against defendant Louis revolved instead around his actions after the original property settlement agreement was executed. Plaintiff claimed that his post-settlement actions jeopardized her rights under the original property settlement agreement.”
The N.J. Supreme Court went on to state:
Puder, however, did not erect an absolute bar to a claim of malpractice if a former client enters into a settlement with regard to the underlying action before obtaining a decision with respect to the complained-of conduct of the attorney. That Puder did not erect such an insurmountable barrier is demonstrated by this Court’s subsequent statement that “Puder represent[ed] not a new rule, but an equity-based exception to Ziegelheim‘s general rule” in which, by “applying equitable principles, [we] carved out a limited exception to the Ziegelheim standard.” Guido v. Duane Morris, LLP, 202 N.J. 79, 94 (2010)(holding that plaintiffs who settled a dispute with respect to their rights in a close corporation were not precluded from suing their former attorneys for advice rendered in connection with that settlement). See also Hernandez v. Baugh, 401 N.J.Super. 539 (App. Div. 2008).”
Chart comparing Ziegelheim, Puder, and Gere
[Larry's note: I apologize for the typo in spelling Puder incorrectly in the chart].
The merits of permitting a former client to sue her attorney for legal malpractice after settling her underlying divorce case will depend upon the relative equities between the parties, based upon the facts of each case.
I agree we the Court’s decision because a client’s right to competent, professional, guidance in a matrimonial action trumps the right of an attorney to an absolute bar from a legal malpractice suit every time a client agrees to a settlement in open court on the record.
A client is oftentimes persuaded by the nuances of our body language, and the English language we use to explain our recommendations. We all know the subtleties and pressures we can exert to help a client make the “right” decision.
We are ethically bound to vigorously defend a client’s right to make the wrong decision.
I imagine whether a temporary customer has buyer’s remorse, or a sophisticated client has a change of heart and is left with only the lawyer to sue, we are going to be sued.
Be warned and wary of a client saying yes with his words, but really meaning no.
Puder v. Buechel, 183 N.J. 428 (2005)